Court orders new look at Net porn law

On Monday, justices voted 8-1 to send the case back for reconsideration by the lower court that struck down the law. However, the high court did not lift an injunction preventing enforcement of the law, meaning the government's hands are still tied when it comes to blocking content deemed harmful to minors.

COPA passed in 1998 and made it illegal to sell sexually explicit material via the Web if minors could see it. Since then, the measure has been bogged down in the courts amid challenges it was overly broad and violated the First Amendment by preventing adults from accessing certain Web content.

The court said COPA's use of "community standards" to determine harmful material did not make the law overly broad, as the 3rd U.S. Circuit Court of Appeals in Philadelphia had determined in a previous ruling. However, it did not address other challenges to the law, including charges that COPA is vague and does not use the least restrictive measure possible to protect children from porn.

Instead, the high court ordered the 3rd Circuit to consider those issues, meaning legal battles surrounding COPA are far from over.

"Whether COPA is constitutional was left to be decided another day on other grounds," said Erwin Chemerinsky, a law professor at the University of Southern California.

In their mixed decision, the only issues the judges agreed on were that the law should be sent back to a lower court and that the injunction should remain in place.

Writing for the majority, Justice Clarence Thomas cited earlier rulings upholding the concept of community standards.

"We have observed that it is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City," he wrote.

However, Justice John Paul Stevens said that although the imposition of community standards can shield children from inappropriate speech, it can also damage free speech in cyberspace.

"In this context of the Internet, this shield also becomes a sword, because the community that wishes to live without certain material not only rids itself, but (rids) the entire Internet of the offending speech," Stevens wrote.

Civil liberties groups are hoping the lower court eventually will overturn the law on other grounds.

The Supreme Court's ruling "doesn't really change the equation one way or the other," said John Morris, staff counsel with the Center for Democracy and Technology, which filed a brief urging the court to overturn the law. Morris called Monday's ruling "one step in a long line of litigation" related to the law.

The American Civil Liberties Union (ACLU), which led the challenge of COPA, praised the court's decision to let the injunction stand. "The court clearly had enough doubts about this broad censorship law to leave in place the ban, which is an enormous relief to our clients," ACLU attorney Ann Beeson said in a statement.

Nevertheless, the ruling could turn out to be a minor victory for those hoping to rein in objectionable material on the Web. For one thing, the court didn't specifically brand the law unconstitutional, as it has done in other Web content cases such as one brought against the 1996 Communications Decency Act. What's more, anti-porn activists can argue that material may violate community standards in conservative areas in their attempts to remove it from the Web.

But those arguments may be somewhat tempered because the court was vague in defining what constitutes a community when it comes to determining such standards, leaving open the question of whether local or national tastes and values will define what's acceptable on the Net.

Legal experts agreed that the ruling was a minor bump on the road to determining how Web content is regulated.

Christopher Wolf, an attorney with Proskauer Rose, thinks COPA eventually will go the way of other attempts to protect children online. "I'd be surprised if it is ever validated," Wolf said. "In the meantime, the law is off the books, and free speech is alive and well."